RAJANI KANTA GHOSH Vs. SOURENDRA NATH MITTER

JUDGEMENT

(1.) This appeal is brought by certain defendants in a suit for enforcement of a mortgage dated 10 August 1908. The mortgage was for a small sum of Rs. 3,800. It would appear that it contained a provision for interest at two per cent, per mensem compound interest with monthly rests. The suit was brought on 15 March 1920 by which time notwithstanding that a small sum of Rs. 2,045 had been paid to the mortgagee no less than Rs. 45,819 was due according to the mortgage-bond. It appears that the suit was decreed ex parte in September 1920. The defendants however appear to have established that service upon them was not correct and after no less than six-years, namely on 16 August 1926, the ex parte decree was set aside and the suit was restored. On 27 February 1929 the learned Subordinate Judge passed a preliminary decree. He passed a preliminary decree for six-sevenths only of the amount due on the bond but the amount notwithstanding had by this time grown to the extraordinary figure of Rs. 3,31,699. A great many defences were taken by the mortgagors which have since been abandoned as to the validity of the mortgage, as to whether the mortgage was obtained by undue influence and questions of like character. In the present appeal Mr. Pugh, the learned counsel for the appellants has taken four definite points and to those points I shall confine myself.

(2.) The first point is this: When the mortgage was executed it was executed in favour of one Bepin, but it turns out that two other persons were joint with him. When the suit was brought it was brought by Bepin's sons, by plaintiff 3 Khoka and by the administratrix to the estate of one Charu. Khoka it seems died on 7 April 1928 and the first point taken is that the suit abated within ninety days of that date and the plaintiffs had 60 days thereafter in which to set aside the abatement; that brings us to the mon September, in the year 1928. An application on behalf of two persons was made on 4 February 1929 saying that there had been an order (apparently on 6 November 1925) appointing them receivers to the estate of the mortgagees and it said that the Receivers after their ap-poiotment had been acting in the suit, had made an application for amendment of the plaint and had been making other applications and that that being so the Receivers ought to be formally made parties. Objection was taken to this contention on the ground that Khoka bad died about a year before and that the Receivers could not be made parties because the suit had abated. The view taken by the learned Judge was that the order making the Receivers parties was a purely formal order, that in fact they had been prosecuting the suit, that the defendants had treated the Receivers as proper persons to have notice of the application for restoration, that the Receivers had been allowed to make an application to get defendants 11 to 14 on to the record and so forth.

(3.) That being so he made an order appointing these two persons to represent the plaintiffs in the suit. Mr. Pugh points out that strictly speaking if the suit had become defective and had abated as regards Khoka it was not satisfactory to make the Receivers parties to the suit, and he criticized the view adopted by the learned Subordinate Judge upon technical grounds. He says that Order 22, Rule 10, Civil P. C , does not really cover the substitution that was made in the present case. In my judgment there is much to be said for the view urged by Mr. Pugh. Speaking generally it is a wrong thing to make Receivers parties in a case unless there are special reasons and if the suit had abated against Khoka then that was a formidable difficulty which the learned Judge ought to have tackled in a more technical way. But actually the position is to-day that we have the right under Section 5, Lim. Act, to do justice in the matter. If at the time this application was allowed by the order of 5 February 1929 the learned Judge had been asked in the alternative to overlook the fact that substitution of Kboka had not been made a few months before and to over, look that in view of the excuse that the Receivers had been allowed to act on the part of the plaintiffs I do not think that the learned Judge would have met with any difficulty in extending the time under Section 5, Lim. Act. In my view, that is the proper and correct course to be adopted and if it were necessary I should be prepared to make any order upon that basis. It is not necessary that the plaintiffs suit should fail on this ground. Moreover, in a suit upon this mortgage only Bepin's representatives are necessary plaintiffs.